PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            9 March 2000
	DOCKET NUMBER:   AR1999030978

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Thomas D. Howard, Jr.		Member	
	Ms. Carol Jo Suiter		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his discharge from the USAR be voided and that he instead be transferred to the Retired Reserve.

3.  The applicant states, in effect, that he elected to transfer to the Retired Reserve and submitted his option election through his higher headquarters.  He further states that his headquarters published orders transferring him to the Retired Reserve and the Total Army Personnel Command (ARPERSCOM) unjustly discharged him after he had been transferred to the Retired Reserve.  He also states that he has 20 creditable years of service and elected the option he desired after being twice nonselected for promotion but that he was unjustly discharged contrary to his election.  In support of his applications he submits a statement of retirement points issued by the ARPERSCOM on 14 July 1998 indicating that he has 20 qualifying years of service for retirement, copies of his election option statement, a copy of orders transferring him to the Retired Reserve, and a copy of the orders discharging him from the USAR.  

4.  The applicant’s military records show that on 15 July 1998 the ARPERSCOM notified the applicant (20-year letter) that he had completed the required years of service to be eligible for Retired pay at age 60 (26 November 2016).

5.  On 12 April 1999 the ARPERSCOM notified the applicant through his chain of command that he had been twice nonselected for promotion to the rank of lieutenant colonel and that he must be either discharged from the USAR or transferred to the USAR.  He was provided with an option election statement in which he was to complete and return no later than 12 June 1999.

6.  The applicant elected to be transferred to the Retired Reserve on 5 June 1999 and submitted his option statement through his chain of command back to the ARPERSCOM.  His higher headquarters published orders on 15 July 1999 transferring the applicant to the Retired Reserve effective 30 August 1999.  However, on 27 July 1999 the ARPERSCOM published orders discharging him from the USAR in the rank of major effective 27 August 1999.

7.  In the processing of this case a staff member contacted officials at the ARPERSCOM to determine why the applicant was discharged instead of being transferred to the Retired Reserve.  Officials at the ARPERSCOM indicate that the applicant’s election option statement was not received at the ARPERSCOM prior to the established suspense date or publication of orders.  Officials at the ARPERSCOM also indicated that his higher headquarters did not have the authority to publish orders transferring him to the Retired Reserve and instead should have expedited his request in time to meet the established suspense date.

8.  Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of that regulation relates to the removal of soldiers from active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.
 
9.  Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative procedures governing the administrative separation of enlisted soldiers from the Reserve Components. Paragraph 1-3 states, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud.  After the effective date of discharge, orders could not be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s discharge was accomplished in accordance with law and regulations applicable at the time because his election statement had not been received at the ARPERSCOM by the established suspense date or prior to publication of discharge orders.  

2.  However, it appears that he did complete his election statement and submitted it back to his higher headquarters.  It appears that his higher headquarters, instead of expediting his election statement, unnecessarily delayed it to publish orders which it did not have the authority to publish and resulted in the applicant being unjustly denied transfer to the Retired Reserve. 

3.  Inasmuch as the applicant meets eligibility requirements for assignment to the Retired Reserve and since he was unjustly denied transfer to the Retired Reserve because of an unnecessary administrative delay, it would be equitable and just to correct his military records by voiding his discharge of 27 August 1999 and assigning him to the Retired Reserve effective the same date.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

a.   by voiding the 27 August 1999 discharge from the USAR of the individual concerned; and

b.   by showing that he was transferred to the Retired Reserve effective 27 August 1999.

BOARD VOTE:  

____cs__  ___jh ___  __tdh ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______June Hajjar_______
		        CHAIRPERSON

INDEX

CASE ID	AR1999030978	
SUFFIX		
RECON		
DATE BOARDED	2000/03/09	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  341 	136.0300/trans ret res	
2.		
3.		
4.		
5.		
6.